Several years ago, I was working as an unofficial advisor for the St. Bonaventure student newspaper. A story broke during the semester that someone had spray painted racist graffiti on several campus buildings - including use of the N-word. There was a debate among the student journalists whether or not they should print the word in question.
I advised against it. Not because I thought people would be offended. Not because I disagree with the idea that printing the word exposes it and gives it less power and mystique. I argued that if they printed the word, the story would change. People in the community wouldn't be talking about the larger issue of racism on campus or race relations on a predominantly white college campus in a predominantly white community. All people would be talking about would be "OH MY GOD, THE BV PRINTED THE N-WORD!"
If memory serves, the paper printed the word, and an uproar followed (uproar may be too strong of a word, but it was definitely an issue). It's worth pointing out that this was before our current social media age of instant outrage and hot takes.
I bring this up not to brag about being right, but because this has been on mind since the Adam Schefter/Jason Pierre-Paul story broke last night.
Let's deal with the legal issues right away: Schefter didn't violate HIPAA because HIPAA doesn't apply to the media. Also, the Supreme Court held in Barnicki v. Vopper that the media can publish illegally obtained information provided that the media didn't break the law in obtaining the info. In other words, if someone breaks the law to get a document and hands it over the the media, the media can publish it without legal penalty.
The ethical question is one that can't be easily answered, at least for me. A lot of people are shouting one way or the other online today, and I can't join them, because like a lot of ethical issues, this one's a thousands shades of grey.
But the thing I keep coming back to is this: Why publish the photo?
If Schefter had just written that "sources" told him about JPP's injury, we'd be talking about the injury and its ramifications. If he had written "according to medical reports obtained by ESPN," we might be having some level of this discussion (it is an important, fascinating discussion about journalistic ethics), but not nearly as loud. Seeing the picture of it changes the story in the same way that seeing Ray Rice hit his fiancee made domestic violence feel more awful than ever before, the way hearing Donald Sterling say racist things was more powerful than a lifetime of racist deeds. Seeing or hearing it matters.
Writing on The Big Lead, Mike Cardillo makes the point:
A prominent NFL player who plays in New York of all places blew off a part of his finger with a firework ion July 4 and it remarkably became the buried lede.
If Schefter doesn't publish the photo, we're talking about JPP's injury, his stupidity at playing with fireworks, the impact on the Giants and on the league. The story's focus is where it should be - on the injured player.
But by publishing the photo, the story went from being an injured player, his prognosis, behavior and the ramifications to one about reporting, ethics, HIPAA and transactional journalism. By publishing the photo, all people are talking about is "OH MY GOD, SCHEFTER PUBLISHED A PHOTO OF MEDICAL RECORDS!"
By publishing the photo, the story changed.